Executive Summary: Key Legal and Evidentiary Issues

• Justice Perron determined whether Bradley-Kelly's work on two sites constituted a single "improvement" or multiple improvements under the Construction Lien Act.
   
• Timeliness of the Earl Armstrong claim for lien turned entirely on this single-versus-multiple-improvement finding.
   
• Atkins presented no evidentiary support for its position that the two sites were separate improvements.
   
• Contiguity of the lands emerged as a decisive factor, distinguishing this case from the Divisional Court's decision in Caledon.
   
• Both parties relied on a joint statement of agreed facts that left only one issue genuinely in dispute.
   
• Summary judgment was found appropriate because no genuine issue requiring a trial remained.
   

Facts of the case

Bradley-Kelly Construction Ltd., a sub-subcontractor, performed electrical and roadway lighting work on the City of Ottawa's Trillium Line Extension – Ottawa Stage 2 Light Rail Transit project. The project stemmed from a single design, build, finance and maintain agreement dated March 28, 2019 between the City of Ottawa and TransitNext General Partnership, with AtkinsRealis Construction (Pacific) Inc. [also styled "AtkinsRéalis"/"Atkinsréalis" in the source] acting as general contractor and GIP Construction Ontario East Ltd. as subcontractor under a single subcontract dated December 1, 2021. Bradley-Kelly entered into two separate sub-subcontracts with GIP: one in February 2022 for roadway lighting and traffic infrastructure at Earl Armstrong Road, and one in June 2022 for roadway lighting and electrical work at the New Walkley Yard [also spelled "New Wakley Yard" once in the source]. Bradley-Kelly performed work under the Earl Armstrong subcontract from October 2022 until approximately December 27, 2023, and under the Walkley subcontract from June 2022 until approximately January 25, 2024. On February 15, 2024, Bradley-Kelly preserved claims for lien for both sites: $615,502.85 (inclusive of HST) for the Walkley work and $761,602.33 (inclusive of HST) for the Earl Armstrong work. Atkins vacated both liens in March 2024 by posting bonds. The Walkley claim was subsequently settled, with $615,502.85 of the statutory holdback to be paid to Bradley-Kelly, leaving $703,565.82 remaining in the holdback maintained by Atkins under the GIP subcontract. Bradley-Kelly brought this motion for summary judgment seeking release of that remaining holdback with respect to the Earl Armstrong lien, while Atkins brought a cross-motion seeking a declaration that the Earl Armstrong lien had been filed out of time. GIP supported Bradley-Kelly's position.

Policy and legislative provisions at issue

The parties' dispute centred on the application of the Construction Lien Act, the predecessor legislation which both sides agreed governed the motions. Subsection 31(3)(a)(ii) of the Act provides that a subcontractor's lien expires 45 days after the person last supplied services or materials to the "improvement," subject to statutory exceptions for certification and substantial performance. Section 1 of the Act defines "improvement" as including any alteration, addition, or repair to land, or any construction, erection, or installation on land essential to its normal or intended use. Atkins argued that Bradley-Kelly's Earl Armstrong lien ought to have been registered as a general lien under section 20 of the Act, which permits a lien claimant to elect to have its lien follow the form of contract across multiple premises under a single contract. Bradley-Kelly and GIP disputed that section 20 applied, maintaining instead that all of Bradley-Kelly's work fell within a single improvement under the ordinary 45-day lien preservation framework.

Reasoning and analysis

Justice Perron applied the fact-finding framework established in prior authorities to determine whether Bradley-Kelly's work at the two sites related to a single improvement. Citing the decision in The State Group Inc. v Quebecor World Inc. and 4307046 Canada Inc., the Court noted that determining "same improvement" depends on whether a nexus exists between the work in question amounting to a common effort, regardless of whether one or multiple contracts govern the work. The Divisional Court's decisions in 1499545 Ontario Inc. (Northern Bulk Logistics) v Pattern Development and Prasher Steel Ltd. v Pre-Eng Contracting Ltd. were also applied, confirming that a lien persists from first to last supply regardless of the number of subcontracts involved. Justice Perron found that Bradley-Kelly and GIP presented substantial evidence supporting a single improvement, including the single procurement process and prime contract, Atkins' role as general contractor across the entire project, common oversight of both work sites by the same individual, a single certificate of substantial performance covering all project lands, a single holdback fund, and the project's inability to open until all components were complete. By contrast, Atkins offered no evidence supporting its position that the sites constituted separate improvements, relying instead on assertions regarding the distance between parcels and the limited site description in Bradley-Kelly's claim for lien. Applying the Divisional Court's reasoning in Caledon (Town) v 2220742 Ont. Ltd. o/a Bronte Construction, which tied the concept of "improvement" to contiguity of land, Justice Perron distinguished Caledon on the basis that the lands there were found to be separated by roads and privately-owned properties, whereas the evidence here showed the Earl Armstrong and Walkley Yard sites were connected by rail lines and contiguous. The Court rejected Atkins' overall position for four reasons: the absence of any supporting evidence for multiple improvements, a mischaracterization of Bradley-Kelly and GIP's actual position, a lack of supporting legal authority for the section 20 argument, and a disagreement with Atkins' interpretation of the Northern Bulk decision.

Ruling and overall outcome

Justice Perron concluded that Bradley-Kelly's work at both sites was performed toward a common purpose in furtherance of a single improvement, meaning the Earl Armstrong claim for lien—preserved within 45 days of the January 25, 2024 last date of supply—was timely. Bradley-Kelly's motion for summary judgment was granted, and Atkins' cross-motion for a declaration that the lien was filed out of time was dismissed. Atkins was ordered to forthwith release the remaining statutory holdback, stated in the decision as $703,565.82, to Bradley-Kelly. The decision does not specify a separate costs award; instead, it sets out a schedule for the parties to deliver written costs submissions if they cannot reach agreement.